The King v John Jones

• Jurisdiction: Ireland
• Judgment Date: 15 November 1916
• Date: 15 November 1916
• Court: King's Bench Division (Ireland)

The King

and

John Jones (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1917.

Habeas Corpus — Absentee from Military Service — Military Service Act, 1916 (5 & 6 Geo. 4, c. 104); Army Act, 1881 (44 & 45 Vict. c. 58); Reserve Forces Act, 1882 (45 & 46 Vict. c. 48) — Jurisdiction of Justices to commit Deserter to Military Custody.

To justify an order committing to military custody a person charged as a suspected deserter under the Army Act, 1881, c. 58, sect. 154, or charged as an absentee, being ordinarily resident in Great Britain on August 15, 1915, under 5 & 6 Geo. 5, c. 104, section 1, the Court of Summary Jurisdiction must be satisfied that such person is a deserter or is so ordinarily resident. It is not enough that, without being itself satisfied of such fact, the Court should decide that there was a prima facie case proper for the consideration and decision of another tribunal.

Held, that an order committing to military custody a person charged as an absentee under 5 & 6 Geo. 5, c. 104, section 1, was invalid, as the Court did not decide that it was satisfied as to such person being ordinarily resident in Great Britain on August 15, 1915.

Held also, that habeas corpus was an appropriate remedy for a person in military custody under such invalid order.

Quaere: (1) Whether an order committing to military custody can be made by a single magistrate under the Army Act, 1881, c. 58, sect. 154, or under 5 & 6 Geo. 5, c. 104, sect. 1;

(2) as to the effect of an order committing to military custody in determining the status of the person charged;

(3) as to the form of such order.

Walder v. Turner, 33 T. L. R. I., and Ferguson'sCase (unreported) discussed and distinguished.

Motion to make absolute a conditional order for a writ of habeas corpus directed to Colonel Sir Anthony Weldon, Bart., commanding His Majesty's Forces at Limerick, to bring up the body of John Jones and the day and cause of his detention.

The prosecutor, John Jones, in June, 1914, left Kilteely in the county of Limerick, where his parents resided, and went to London, where he resided from June, 1914, till December, 1915, at 35 North Side, Clapham Common. During his residence in London he was employed, as he alleged, temporarily with the Prudential Insurance Company. He left this employment and London in December, 1915, and returned to his parents at

Kilteely, where he resided from the time of his return until his arrest.

On the 27th January, 1916, the Military Service Act (5 & 6 Geo. 5, c. 104) came into operation, and under its provisions the prosecutor if “ordinarily resident” in Great Britain on the 15th August, 1915, became, if of military age and not exempt, attached to the reserve of His Majesty's forces. At the crucial date, 15th August, 1915, the prosecutor was in residence at North Side, Clapham Common, and from the certificate of his registration under the National Registration Act, 1915, it appeared that he was, in 1915, twenty-two years of age and unmarried. In that certificate the house where he then was living was given as his “permanent postal address.”

On the 8th March, 1916, by a proclamation under the Military Service Act, 1916, persons in the Wandsworth sub-area made liable to service by that statute were called up. It was admitted that, if he was liable to service under this enactment, the prosecutor should have reported himself to the military authorities at Wandsworth.

On the 11th September, 1916, the prosecutor was arrested by the police at Kilteely on the charge of “unlawfully absenting himself from the reserve forces of Wandsworth sub-area,” and on the following day he was brought before the resident magistrate in the police barracks. The resident magistrate, Mr. St. George, then made the following order:—

“Depositions taken and case adjourned to 19th September, 1916, at 11 a.m. at New Pallas Courthouse, defendant admitted to bail.”

This order was duly entered in the petty sessions book and signed by the resident magistrate, but there was no entry made that it was an order made out of petty sessions.

On the 19th September the prosecutor appeared at New Pallas courthouse. The resident magistrate and three justices were present. On behalf of the Crown it was contended that Mr. St. George could by himself consider and decide the case; on behalf of the prosecutor it was argued that the case could only be heard and determined by a Court of Summary Jurisdiction, and that the resident magistrate sitting by himself could not be such court. Mr. St. George ruled against the contention of the prosecutor, but adjourned the case to consider the matter. After several adjournments the case finally came on at Pallas courthouse on the 31st of October, 1916. This was not the date of the ordinary petty sessions, but other justices attended. The Crown again argued that Mr. St. George could alone dispose of the case, and on behalf of the prosecutor it was again argued that the case must be decided by a Court of Summary Jurisdiction. Mr. St. George ruled against the latter contention, and, excluding the other justices, proceeded to take depositions. The case made by the prosecutor's witness was, that his employment in London was merely temporary, and was undertaken with a view to obtain experience, and to qualify for an appointment in Dublin. Mr. St. George stated it was not a part of his duty to decide the guilt or innocence of the prosecutor, and that he would do no more than satisfy himself that a prima facie case had been established against the prosecutor. At the close of the depositions be stated that he was satisfied that such prima facie case had been established, and made the following order:—

“Informations taken and the defendant remanded in custody for eight days or sooner if called for by a military escort.”

On the 2nd November, 1916, the prosecutor was taken into military custody at Limerick.

The following are the material portions of the statutes referred to in the argument or judgment:—

5 & 6 Vict. c. 12:—s. 22—It shall be lawful for the constable of any place where any person reasonably suspected to be a deserter shall be found, or in any adjoining place, and if no such constable can be immediately met with, then for any officer or soldier in Her Majesty's service to apprehend, or cause such suspected person to be apprehended, and to cause him to be brought before any justice living in or near such place and acting for the same or any adjoining county, who hath hereby power to examine such suspected person; and if by his confession, or the testimony of one or more witnesses upon oath, or by the knowledge of such justice it shall appear that such suspected person is a soldier and ought to be with the corps to which he belongs, such justice shall forthwith cause him to be conveyed to some public prison in such place, or if there be no public prison in such place, then, at the discretion of such justice of the peace, to the nearest or most convenient public prison in the same or any next adjoining county, or to the Provost Marshal, in case such deserter shall be apprehended within the city or liberties of Dublin or places adjacent, or if such deserter shall be apprehended by any party of soldiers of his own regiment, or shall be apprehended in the vicinity of the headquarters or of any depot of the regiment to which he shall belong, then such justice may deliver such deserter to the party of his regiment, or may order such deserter to be taken to the headquarters or depot of the regiment to which he belongs, instead of committing him to prison, and such justice shall transmit an account thereof, in the form prescribed in the schedule annexed to this Act, to the Secretary at War, specifying at the foot thereof the commitment to prison or delivery of such deserter to the party of his regiment in [sic? or] order for his being taken to the headquarters or depot of his regiment as the case may be, to the end that such person may be removed by an order from the office of the Secretary at War and proceeded against according to law.” [See also 10 Geo. 4, c. 6, sect. 21.]

Army Act, 1881, 44 & 45 Vict. c. 58.—

Sect. 12:—(1) Every person subject to military law who commits any of the following offences; that is (a) deserts or attempts to desert His Majesty's service shall on conviction by courtmartial if he committed such an offence when on active service or under orders for active service, be liable to suffer death or such less punishment as in this Act mentioned; and if he committed such offence under any other circumstances, be liable for the first offence to suffer imprisonment.

Sect. 15.—Every person subject to military law who (1) absents himself without leave shall, on conviction by courtmartial, be liable, if a soldier, to suffer imprisonment or such less punishment as in this Act mentioned.

Sect. 45 (1).—Every person subject to military law when so charged (with an offence punishable under the Act) may be taken into military custody.

Sect. 154.—With respect to deserters the following provisions shall have effect:—

(1) Upon reasonable suspicion that a person is a deserter, it shall be lawful for any constable, or if no constable can be immediately met with, then for any officer or soldier or other person, to apprehend such suspected person, and forthwith to bring him before a court of summary jurisdiction.

(3) Where a person is brought before a court of summary jurisdiction charged with being a deserter under this Act, such Court may deal with the case in like manner as if such person were brought before the Court charged with an indictable offence.

(4) The Court, if satisfied either by evidence on oath, or by the confession of such person that he is a deserter, shall forthwith, as it may seem to the Court most expedient with regard to his safe custody, cause him either to...